Lee v. City of Moraine Fire Dep't
| Decision Date | 03 March 2015 |
| Docket Number | Case No. 3:13-cv-222 |
| Parties | David Lee, Plaintiff, v. The City of Moraine Fire Department, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
ENTRY AND ORDER GRANTING IN PART MOTION FOR SUMMARY JUDGMENT BY PLAINTIFF DAVID LEE (DOC 37), GRANTING MOTION FOR SUMMARY JUDGMENT BY DEFENDANT MORAINE PROFESSIONAL FIREFIGHTERS ASSOCIATION, IAFF LOCAL 2981 (DOC. 44) AND GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS CITY OF MORAINE FIRE DEPARTMENT, AND CITY OF MORAINE, OHIO. (DOC. 45). JUDGMENT IS AWARDED TO THE UNION ON PLAINTIFF'S CLAIMS AGAINST IT. JUDGMENT IS AWARDED TO THE CITY OF MORAINE FIRE DEPARTMENT ON PLAINTIFF'S CLAIMS AGAINST IT. JUDGMENT IS AWARDED TO THE CITY ON PLAINTIFF'S RETALIATION CLAIMS. THE CITY IS FOUND LIABLE ON PLAINTIFF'S ADEA AND GINA CLAIMS. THE CASE REMAINS SET FOR TRIAL ON THE QUESTION OF DAMAGES.
This matter is before the Court for decision on motions by all parties for summary judgment, each asserting that it is entitled to judgment in its favor without need for a trial. As there is little dispute among the parties regarding the facts of the case, it is uniquely appropriate for summary judgment.
Plaintiff's first cause of action alleges Defendants discriminated against Plaintiff by discharging him because of his age in violation of the Age Discrimination in Employment Act, 29U.S.C. §§ 621 et seq, ("AEDA") and Ohio Revised Code §§ 4112.14 and 4112.99. Plaintiff's second cause of action alleges Defendants unlawfully requested Plaintiff's genetic information and family medical history in violation of Title II of the Genetic Information Nondiscrimination Act, 42 U.S.C. §§ 2000ff et seq., ("GINA"). Plaintiff's third cause of action alleges Defendant the City of Moraine and Defendant City of Moraine Fire Department1 retaliated against Plaintiff because of his protected activities in violation of the ADEA, 29 U.S.C. § 623(d), GINA, 42 U.S.C. § 2000ff-6(f), and Ohio Revised Code § 4112.02(I).2
Plaintiff David Lee was a firefighter/EMT for Defendant City of Moraine Fire Department for nearly sixteen years. (Lee Aff. ¶2). He was also a member of Defendant Moraine Professional Firefighters Association, IAFF Local 2981. (Id.)
In the early 2000's, the Moraine Local Firefighters Union, IAFF Local 2981 (the "Union") proposed physicals for members of the City of Moraine Fire Department . (Harris Dep. pp. 69, 101.) This program only began in 2006. (Cooper Dep. p. 19.) Since 2006, the program has gone through several revisions. (Id.) The Standard Operating Guideline was developed to be consistent with requirements of the Ohio Administrative Code for firefighters, and recommendations of the National Fire Protection Agency ("NFPA"), National Institute for Occupational Safety and Health ("NIOSH"), the Occupational Health and Safety Administration ("OSHA") and the Fire Service Joint Labor Management Wellness-Fitness Initiative. (Cooper Dep. Ex. 7, 30; Lovett Dep. pp. 23-24; Ex. 49.)
In April 2008, Moraine Fire Department updated its requirement for health and wellness physicals denominated as "Standard Operating Guideline 100.5.13 - Health and Wellness Physicals Revised 4/7/2008". (Ex. S; Cooper Depo. p. 14-16, 139). Moraine Fire Department and the Union then adopted the 2008 Guideline through a "Memorandum of Understanding." (Id.; Harris Dep. Ex. S.) Although the Memorandum of Understanding was entered into in 2008, because the process had to be bid, it took several months for the request for proposal to be written, approved by attorneys, submitted to City Council and then sent out for bid. (Cooper Dep. Ex. 2.) Thus, physicals did not begin until 2009. (Id.)
In 2011, the Division Heads of the City of Moraine were ordered to find ways to reduce costs within their departments because the City was facing financial shortfalls. (Trick Dep. pp. 12-13.) Deputy Chief David Cooper, who spearheaded the Fire Department Health and Wellness Program, suggested that he would work with Dr. William Lovett to reduce some costs associated with the firefighters' physicals program. (Trick Dep. p. 13.) Dr. Lovett is a board certified emergency medicine physician who serves as the medical director for many Fire and EMS Departments in both Ohio and Indiana and performs physicals for others such as the City of Moraine. (Lovett Dep. pp.7-8.). In February 2011, Deputy Chief Cooper sent an email to Dr. Lovett's office requesting recommendations for the Standard Operating Guideline and ways that the City might be able to cut costs. (Cooper Dep. Ex. 7.) In response, Dr. Lovett recommended changing the Standard Operating Guideline so that a full comprehensive physical only be given to individuals over 40 and that those under 40 would complete an OSHA questionnaire, which would then be reviewed by the physician to determine if further testing was necessary. (Cooper Dep. Ex. 7.) Dr. Lovett added a question concerning family history of heart disease to the OSHA questionnaire. Doc. 37-3 at 84, PAGEID 474. Consistent with the recommendations of Dr.Lovett, the changes were incorporated into the Standard Operating Guideline, which became effective April 1, 2011. (Lee Dep. Ex. 1.)
The Union and its members were under pressure to agree to a new collective bargaining agreement with Moraine Fire Department, due to the impending passage of Ohio's "Senate Bill 5." (Lee Aff. ¶4). Moraine Fire Department proposed new language in Article 10, Section 5 of the proposed CBA, which read:
It is understood and agreed that the City may establish a program to monitor employee safety and health. This program is intended to comply with the requirements set forth in OAC-4123:1-21-07(F)(1,2); OAC-4123:1-21-02(P)(3) and the Moraine Fire Division Non-Emergency [Standard Operating Guideline] "Health and Wellness Physicals" rev. 4/1/2011. (Copper Depo. p. 146; Ex. B, p.14).
The Standard Operating Guideline 100.5.13 explicitly provides that the "program will not be punitive as the purpose of the program is to improve the health and wellbeing of the individual."
At a Union meeting, Plaintiff David Lee, a member of the Union executive board had asked for a copy of the revised Guideline and was told it was unavailable. (Lee Aff. ¶4). Lee voted against accepting the new CBA, but it was passed by a majority of the union membership. (Lee Aff. ¶4; Ex 12).
On November 23, 2011, Lee received an email sent to all firefighters explaining, "If you are under the age of 40, you only receive a partial physical which involves the questionnaire only." (Lee Aff. ¶5; Ex. D). Lee was 43 at the time. Lee completed the questionnaire sent to him by Dr. Lovett's office and forwarded it to Lovett's office. (Lee Aff. ¶6). Question 1(a) on the questionnaire asks, "Is there a family history of heart disease with your parents or siblings?" (Lovett Depo. p. 85-87; Ex. F). Lee was also advised to schedule a blood draw, consistent withthe Standard Operating Guideline. (Lee Ex. D.) Although Deputy Chief Cooper reminded Lee to schedule his physical, Lee continued to miss his scheduled appointments. (Lee Ex. E.)
Lee had begun to have reservations about the legality of the 2011 Guideline. He researched discrimination laws online and, in early 2012, Lee made an appointment with the Cincinnati EEOC office. (Lee Aff. ¶7). During his meeting at the EEOC, Lee was told that the 2011 Guideline likely violated the ADEA and GINA. (Id.).
On January 30, 2012, Lee was scheduled for his "full" over-40 physical with Dr. Lovett. At Dr. Lovett's office, he asked that he be permitted to complete only those tests required of a firefighter under 40. (Lee Aff. ¶8). In an email from Dr. Lovett's office to Moraine Fire Department, they described Lee's behavior as follows:
Patient requested that he would only allow a partial physical to be performed, however, according to the Moraine FD roster, David Lee was to receive a full workup . . . (A 40 year old wellness physical). Patient agreed to only a partial exam . . .[a]lthough Moraine's contract did not allow for employees to decide between a partial and full exam . . . Patient recited that he felt according to the Ohio Administrative Code it was age discrimination to receive the full physical based on being over 40 years of age. Throughout the exam, patient was not argumentative, but stern on his decision.
Although he offered to take the same minimal physical required of a firefighter under 40, Lee was told during his non-exam that Dr. Lovett's office had called Deputy Chief Cooper at Moraine Fire and confirmed that his choices were a full, over-40 physical or be deemed "Not Fit for Duty." (Lee Aff. ¶8; Trick Depo., p. 56-57).
After leaving Dr. Lovett's office, Lee returned to work. There Lee approached his immediate supervisor, Lt. Phil Sinewe, and stated he needed to file a complaint about the physical; Sinewe told Lee that he would have to talk to Deputy Chief David Cooper. (Lee Aff. ¶9). The twomen then proceeded to meet with Cooper. Lee explained his objections and asked Cooper what they might do to resolve his concerns. (Lee Aff. ¶9). Cooper told Lee to "reduce his complaint to writing," and he told Lee that, by going to the EEOC, Lee "already took it out of the City's hands." (Cooper Depo. p. 75-80; Ex. 23).
Lee did as he was asked and wrote a four-page letter explaining that he objected to the 2011 Guideline as being "age discrimination" and objected that the medical questionnaire asked impermissible questions. (Cooper Depo. p. 82; Ex. 26). When he delivered the letter to Cooper's office later that day, Cooper asked Lee why he took the complaint "out of the department" by going to the EEOC first. (Cooper Depo. p.90; Ex. 27). Lee explained that he had not yet filed a formal EEOC complaint, and he wanted to try to first resolve it with Moraine Fire. (Lee Aff. ¶10).
During this meeting, Lee also mentioned...
To continue reading
Request your trial